How Whren Protects Pretext

Funny, isn’t it, that “pretext” is a dirty word, a liability-conferring word, in an employment discrimination case, or a fraud case, but that in Fourth Amendment jurisprudence the word has been given a free pass? That, to use Eric Citron’s phrase, the word even seems to open up a “liberated space for bad intentions”?

Especially in the context of traffic stops, the pretext problem is widespread and destructive of what used to be called “police-community relations.” In the District of Columbia, it is unlawful (who knew?) to hang so much as fuzzy dice or one of those little two-dimensional pine tree air fresheners from a rearview mirror, or to have tinted windshields or front side windows that allow less than seventy percent light transmittance. Regulations like that, read together with the law of pretext crystallized by Whren and its progeny, amount to the issuance of virtually unlimited hunting licenses to Citron’s “Bad Cops.” Trial judges, bound by controlling precedent, may deplore pretextual stops, but their distaste will not be grounds for suppression.

Citron acknowledges that the medicine he prescribes for the Fourth Amendment malady he calls the “irrelevance principle” will cure only the most egregious pretext cases—“those cases in which an illicit motive is a but-for cause of the seizure or search.” He’s right to concede the point, but the concession virtually destroys the prospects for real-life application of his theory. The evidence adduced in a motion to suppress the fruits of searches and seizures consists, nearly always, of nothing more than the testimony of arresting officers. Arresting officers do not admit to illicit motives. Adroit cross-examination may raise questions in a judge’s mind about whether the police officer in the witness chair is Good Cop or Bad Cop, but to find improper motive and but-for causation would almost always require a frank finding that the officer lied about his or her motivation. In one recent case involving a tinted windshield stop, after hearing the testimony of the arresting officers, the trial judge issued a sua sponte order for the production of statistics on tinted windshield stops and arrests in the District of Columbia, found clear evidence of their concentration in low-income and high-crime areas of the city, pinpointed (and exposed) officers who have become “specialists” in the issuance of tinted window citations, and opined that “[t]he tint window law is as close to a purely pretextual reason for stopping vehicles as can be found in the real world of everyday police work.” What he could not find on that record was that pretext had been the but-for cause of the traffic stop. The motion to suppress was granted—but not because of the pretext.

I am not confident that the courts will soon, or ever, abandon Whren’s rule that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis” (even if judges and Justices eventually have to acknowledge that what they are pleased to call “objective” analysis is really only a manifestation of their own preferences for their own [subjective] ideas of what is reasonable). As Citron points out, the Supreme Court’s unanimity in Whren, the later unanimous extension of its holding, and the universal if not enthusiastic acceptance of its rationale in the lower courts, all have given hornbook status to the decision. Too bad, if your principal focus is on police misconduct in traffic stops.

If on the other hand your focus is more broadly upon what Citron calls a “power-skeptical approach” to the behavior of policemen, and regulators, and presidents, then I think there is considerable room for jurisprudential change, or growth. Citron’s credo is a good place to start:

I believe that the Fourth Amendment exists not merely to secure our persons, houses, papers, and effects from prying eyes, but to enact and maintain a certain kind of relationship between citizens and the awesome power of the state and its police force. That relationship is one of trust—a sort of fiduciary duty that runs from the police to the citizenry that granted them their unique powers in the first place.

You could build a pretty good-sized community of believers on that creed, but the larger community Citron is concerned with–the community that is concerned with securing freedom from totalitarianism—needs a bigger tent, and maybe a Nicene amendment, to accommodate those whose CPS may locate the “sort of fiduciary duty that runs from the police to the citizenry” in the Due Process Clause, or in the Equal Protection Clause, or even, Heaven forfend, in the Second and Tenth Amendments.

James Robertson is a United States District Judge for the District of Columbia.